ON THE MERITS.
We take up the first ground before us for our determination: the power vel non of the State to sue for and recover moneys collected by the sheriff for account of the levee district.
If we should grant all that is claimed by plaintiffs on the ground just stated, the judgment obtained would be a nullity only to the extent that the amount of the levee taxes was collected and not paid over by the sheriff. The judgment would remain valid for the .State and parish taxes. The entire judgment would not be null. A judgment may be annulled in part and in part maintained. The con*648sideration of the judgment does not appear to have been disputed in the lower court. But even as to the levee taxes the judgment is not a nullity on the ground urged.
It can not be denied that the statutes secured to the Red River, Atchafalaya and Bayou Boeuf Levee District the right to sue in all matters affecting the interests of the board. Section 3 provides that the board shall have the power to sue and shall be sued in its corporate name, but it does not follow that all suits in any manner affecting the rights or the revenues of the levee district must be brought by or against the Board of Levee Commissioners in the absence of all statutory declaration upon the subject.
The sheriff, under Sec. 9 of Act 79 of 1890, was in duty bound, whenever ordered by theBoard of Commissioners, to collect the t ixes levied on the tax rolls furnished him for the purpose at the same time and in the same manner as was prescribed for the collection of State and parish taxes; and he was bound to account to the State Treasurer for the collection; in other words, the sheriff is responsible to the State Treasurer for the levee taxes collected. That officer is made the keeper of the fund and the sheriff is required to settle with the Auditor for this tax as he is required to settle for the other taxes he collects.
It does not by the language of the statutes appear to have been contemplated by the legislator that the boaz’d would institute suits against defaulting sheriffs and compel them to settle and pay over to it the taxes collected and that the board would at some period of time not stated pay over to the treasurer. On the contrary, these taxes were placed on tlze same footing as any other tax; to be collected, accounted for, and subsequently paid out by the State Treasurer. The Levee Board was not in any manner made the custodian of th6 levee fund. By the language-of the statutes the bondholders and other creditors are to look to the State Treasurer for payment— that is, all warrants are to be drawn on this officer and to the extent of the funds received the State is placed in a fiduciary position. Sec. 20 of the Act of 1892 provided that all funds collected for the board shall be transferred to the credit of the district by the State Treasurer and the officers shall proceed to collect the taxes.
In addition, it is manifest that the amount, was, in every respect, a tax. It must as such fall within the control of the section of the Revised Statutes which provides that the Auditor shall direct pros-*649editions in the name of the State for all official delinquencies in relation to the assessment, collection and payment of the revenue. With reference to the provisions of Sec. 17 of the same act of 1890, we find it impossible to agree with counsel. Mandamus was not the remedy. The Board of Levee Commissioners may appeal to the courts; the amounts collected would have to be paid in to the treasurer; the process (Mandamus) would only be ancillary to the State’s authority and can not in a case such as the one at bar be the remedy. Moreover, the defendant sheriff and his sureties having confessed judgment, they have admitted the authority of the plaintiff in the case to stand in judgment.
This brings us to the next question involved here: that the mortgage resulting from the tax collector’s bond covers his delinquencies in the matter of State and parish taxes, and can not be extended so as to include levee taxes.
Considered as an original question the sheriff and his sureties on the bond are responsible for all taxes collected by him. As to the mortgage which results from the recorded bond the statute provides-that the “ bonds ” when so registered shall operate from and after the date of registry, as a mortgage on all real estate of the principal obligors therein, in favor of the State, parish and all persons interested.” (Italics ours.)
This includes, in our judgment amount of the taxes assessed under State authority; collected by the sheriff as taxes which he has failed, after collection, to pay to the State Treasurer; to be placed by that officer to the credit of the levee board of the district.
The conditions of the sheriff’s bond as tax collector are that he shall perform all the duties incumbent upon him as tax collector; this includes surely an accounting for all taxes collected. The performance of the principal’s duties as collector of taxes is secured by the mortgage which has been recognized in the judgment confessed and by which unquestionably the tax collector is bound.
The plaintiffs consider that this position is correct in so far as the judgment confessed affects the right of those who confessed judgment and make no complaint personal to them; but they urge that-confession resulting in a judgment recognizing a mortgage upon their property can not operate to their prejudice; that they have a standing to defeat it if they can.
In answer to this complaint, we think it is sufficient to say that, as *650we have already reached the conclusion that there existed a mortgage on the property after the tax collector had qualified and his bond had been recorded, those who bought the property are in no better position than the vendor was at the date of the sale. They purchased from the tax collector after his bond bad been recorded and after the levee district had been created by statute. A valid mortgage against the tax collector was a valid mortgage against them as his vendees,
We pass to the next objection urged: that the levee district was not in existence when the conditions of the tax collector’s bond were defined by law; and that those conditions can not be enlarged so as fo include a liability arising under a subsequent statute. We can not overlook the fact, in deciding this point, that the sheriff’s bond was recorded subsequent to the creation of the board, and that its conditions included the duty of collecting the levee taxes. The Constitution directed the Legislature to maintain a levee system and to that end to levy taxes. The duty of collecting those taxes in the parish for which he was sheriff, devolved upon him at the date the bond was recorded. He acted under it and received the taxes. The plaintiff, despite the State’s mortgage, chose to buy the property.
A similar question was decided it McGuire vs. Bry, 3 .An. 196. As the syllabus covers the point decided, we extract from it: “The sureties on a bond given by a sheriff for the collection of the parish taxes can not, when sued as sureties for a portion of the taxes collected, but not paid over by the sheriff, contest the legality of the police jury making the assessment. By receiving tax roll and executing bond, the sheriff and his sureties recognized the authority of the police jury.
“ It is too late to contest the validity of their ordinances after having acted upon them and collected the taxes.”
This principle was affirmed in Police Jury vs. Brookshier, 31 An. 736.
If the sureties can not contest the legality of the tax collected which their principal has in his possession, it follows that purchasers of property from the tax collector can not set up the defence that the principal, their vendor, never legally contracted to collect the taxes which he has collected.
Here, before the execution of the official bond of the sheriff, the duties under the statutes had been imposed. If an individual had *651furnished such a bond and mortgage for the faithful performance of a duty he certainly would be held bound by the conditions expressed in the bond, and his mortgage would be valid, as no alteration has been made since it was given.
The Legislature has the power to change the duty of the officers, and those who subsequently enter upon obligation upon bonds required or purchase property affected by a mortgage under the bond can not claim or contest the validity of the mortgage on the grounds here urged.
It has been held by a number of courts of this Union that the Legislature has power at any and all times to change the duties of officers, and that it is in effect as though the power was recited in the bond, provided they were within the scope of the contract as originally contemplated by the parties. This covers duties subsequent to the date of the bond as well as those preceding that date. Am. and Eng. Ency. of Law, Vol. 24, p. 882.
Here the case is much stronger for the appellants than the one to which we refer, for the duties were imposed to collect the tax before the bond was signed.
The question of credit given by the Auditor is before us for our determination. The complaint is that the Auditor credited payment made in reduction of the defalcation to the levee fund; that the whole tax collected during stated months was applied by that officer to the credit of the levee fund. This, it appears, was done by request of the tax collector. Having already determined that the collection by the tax collector of the levee tax gave effect as a mortgage to his bond to the extent of the amount collected, it would serve no purpose to pass upon this question. The officer was bound for all the taxes collected, and his bond operated as a mortgage to secure the payment of all taxes collected by him.
Another objection insisted upon by the plaintiffs, is the direct seizure made of the property owned by them; in other words, it is urged that the plaintiffs should have proceeded by hypothecary action and not by direct seizure, as (they assert) the property at the time of seizure was in the hands of third parties. It is a fact as stated by the plaintiffs, that Cannon, sheriff, became the purchaser of the property in controversy after his bond had been recorded; and that a few days subsequent it was sold to Mrs. Mary Pearce, and that upon her death it descended to the appellees, her heirs. The point here is *652grounded by the appellee on the fact clearly stated that the lands which had been seized did not belong to Cannon, the principal obligor at the date of the registry of his official bond. That he did not acquire title to the land until after the registry, and that therefore Sec. 354 of the Revised Statutes did not apply, as it limits the pact de non alienando to mortgages on lands which may have belonged to the principal obligor at the date of the registry of his official bond.
In our judgment, the section does not limit the fact to the extent urged by the appellees.
The right to the pact dates from the registry of the bond, but is not limited to that date alone in our view. This court said in School Board vs. Cousin, 31 An. 298: “ For the security of these bonds the law has seen proper as it were to write on them a sweeping clause de non alienando, as provided in 354, R. S.”
We think that it is, as it were, a maximum as to remedy which includes a minimum; covering all property bought and sold, after registry, as well as all property of the sheriff at the time of the registry.
The pact de non alienando is not statutory save in this statute here. It owes its existence to jurisprudence. It has been recognized, as is well known, in a number of decisions.
Interpreting the statute here this court has said that it was as if it had been written in the bond. Case cited ubi supra.
.In another case, Fluker vs. Bobo, 11 An. 609, with reference to the State here, the court held, “ that it was intended to give to the registry of the bond (as to the property sold, after its registry) the same effect as that conferred in acts of sale by the clause of non-alienation (italics ours), thus including all property on which there is a mortgage by the registry of the bond.
The last of appellee’s grounds is that the property was advertised 4o be sold under a fi. fa. “ on the fourth Saturday, the 20th of June, and that there is no such day in the calendar.”
The appellants here, in effect, admitted the error, and it appears that a re-advertisement was ordered.
It appears of record that the admission of error was made after the injunction had been issued. The state of the facts at the time the writ of injunction issued must be considered, and not facts subsequently happening.
The applicants claim damages for the reason that plaintiffs’ action *653presents a case of an aggravated abuse of the equitable writ of injunction.
We do not think that damages should be allowed. The writ was not absolutely without any ground. The plaintiffs in the writ have withdrawn the sale of the property included in the erroneous advertisement and have ordered a re-advertisement since the injunction was issued.
It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed.
It is further ordered, adjudged and decreed that plaintiffs’ injunction be dissolved and all their demands rejected, save the one that the property be not sold before the date of sale is advertised as required — that is, be not sold as it was at first advertised, “on the 20th day of June.”
The appellees pay costs of appeal.